Careless talk in Preston costs an employer £360,000

In a judgment that could sink many a small organisation the Court of Appeal has upheld a compensatory award of £360,000 to an employee as a result of a single careless remark from her line manager.

The misguided remark was for the employee’s line manager to suggest that “women take things more emotionally than men, who tend to forget things and move on”. It is a comment which I fear most of us have heard (or even made!) at one time or another but it is clearly sexually discriminatory. In the case of BAE Systems (Operations) Ltd v Marion Konczak it was deemed to have caused Mrs Konczak’s mental illness and the employer, BAE, has been held liable.

It was implied by the Judge that the employee may have had an “eggshell personality”(!) That did not inhibit the employee in taking out an Employment Tribunal claim against BAE in Preston, part of Britain’s biggest manufacturing company. Nor did it hinder the Courts in awarding her £360,000.

Therefore you cannot predict who will bring an Employment Tribunal case against you. It is not much easier to assess what view the Courts will take.

For employers it will be difficult to control every sentence uttered by their line managers and supervisors (or even sometimes by themselves) routine talk can become careless talk. But there are steps that should be taken in the light of this case.

  1. Provide equal opportunities training. Your staff need to know that inadvertent remarks might be dangerous. If the employer is forced to close, then their jobs are at risk even if they were not responsible for the remark. Training will reduce the risk of staff making discriminatory remarks or taking discriminatory actions. Training is also a line of defence (not to be overestimated) if a discrimination claim is made against you. Employer Solutions provides Equal Opportunities training for employees on behalf of employers.
  2. Seek to be exemplary yourself. Cues are often provided by the business owner; if you evidence the right attitude then your staff will invariably follow. If they don’t, then remind them.
  3. Watch for signs of discrimination such as unwanted touching, office “banter” or an employee withdrawing from social interaction. In the Konczak case there were indications that all was not well long before the “last straw” that tipped the employee into psychiatric illness.
  4. Take grievances seriously. Those of us who started work in the 1970s (when sexual harassment was rife) may be tempted to downplay remarks such as the one that caused BAE so much angst and cost. If an employee puts a grievance in writing then that should be a warning and a proper hearing needs to take place. Even if an employee doesn’t put them in writing, claims of discrimination need to be addressed.
  5. Recognise the power of the employee. In organisations “power” normally flows from the Managing Director downwards to employees. Where a manager is responsible for a discriminatory action they surrender that power to the employee. Managers makes mistakes (we all do). Employers have to accept that and act appropriately.
  6. Consider having grievances, or at least the appeal against any grievance decision, heard in the presence of an HR professional. He or she should be familiar with the Equality Act and be experienced in hearing grievances. Again this is an area where Employer Solutions, as well as providing a neutral view, has substantial experience.
  7. Check your Employee Handbook and make sure all employees have access to it. In addition to an equal opportunities policy your handbook needs to have a grievance procedure and, preferably, a bullying and harassment procedure. Employees presenting their case in Tribunal often claim they were not aware of such policies and procedures. With Employer Solutions online employee handbook, QR (Quick Read) Codes and URLs it is hard for an employee to claim they were unaware of a procedure. It is even possible to provide evidence that the employee was not merely aware of a particular policy but to provide the evidence that the employee looked at it!

Today careless talk might not cost lives but it can ruin them and those of others around.

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